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Jurisdiction o f BIA

Jurisdiction o f BIA. Appeals from most Immigration Judge decisions on the merits Denials of motions to reopen Bond appeals Interlocutory appeals (i.e., change of venue denied) Appeals from decisions on visa petitions (approx 4,000)

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Jurisdiction o f BIA

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  1. Jurisdictionof BIA • AppealsfrommostImmigrationJudgedecisions onthemerits • Denialsofmotionstoreopen • Bondappeals • Interlocutory appeals (i.e., change of venue denied) • Appeals from decisions on visa petitions (approx 4,000) • AppealsfromdenialsofINA§212waiversof inadmissibility for nonimmigrants • Decisionsonfinesandpenalties • Decisions on BIA recognition/accreditation • Attorney Discipline matters

  2. MostCommonAppealTypes • Asylum,withholding,CAT • Criminalissues • Cancellationofremoval–LPRornon-LPR • Terminationofremovalproceedings • IJ denial of motions –such as motion to reopen or motion to change venue

  3. Preparing ForPossibleAppeal • PRACTICE POINTER • What to Do Before the Immigration Judge: • Make and preserve your Record: objections, requests for continuances, interpreter issues, request to supplement the record • Memorializeoff-the-recordagreements, restrictions andrulings in the record • GiveasolidClosingArgument • Take near-verbatim notes of Oral Decisions • Do not waive appeal unless decision fully favorable

  4. PRACTICE POINTER – SUBPOENAS-LAYING FOUNDATION • Affirmatively ask IJ to enforce subpoena 8 CFR § 1003.35(b)(6) requires the IJ to enforce their subpoena (emphasis added): (6) Invoking aid of court. If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the Immigration Judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers or documents designated in the subpoena.

  5. How do you file an appeal beforetheBIA? • •Timing(ReceivedatBIAwithin30daysofserviceof decisionwhetherbyhandormail. • NoMailboxRule.) • NoticeofAppeal(EOIR-26) • •RemembertoRequestOralArgument • (canbewaived later) • •NoticeofAppearance(EOIR-27)–Requiredevenif youweretheattorneybeforetheIJ • •FilingFee($110payabletoU.S.Dept. ofJustice)OrFeeWaiver(EOIR–26A) • •ProofofServiceonallforms • •Allformsavailableat www.justice.gov/eoir

  6. Whathappensnext? • BIA issues Receipt • File FOIA to the BIA for the full record if: • a. Case has a very large record –paginated record is easier to work with and search electronically; or • b. Case came from another attorney – ensures you have the full record: every exhibit, motion, filing, etc… • BIA will send Transcript and IJ Decision with Briefing Schedule. • Exception: appealing denial of Motion to Reopen - listen to tapes at court for MTR appeals; FOIA; you can cite to hearing recording (BIA Practice Manual 4.6). In brief, make motion for tapes to be transcribed.

  7. Briefing schedules: Detained vs. non-detained • Detainedcases • Simultaneous21-day briefing schedule • Responsebriefsaccepted– try to file within14days • Boardwillnotdelayadjudicationtowaitforresponsebrief. • Non-detained cases • Filingparty:21days • Other party: 21 days to file response brief • Cross appeals? Simultaneous 21-day briefingschedule • BIA willacceptadditionalreplybrief–try to file w/in 14 days • Extensionsof Time– BIA Practice Manual 4.7(c) • One 21 day extension readily granted • Additional extensions RARE. Require serious medical emergency, death orsimilarreason.

  8. AvoidAffirmanceWithout Opinion • 8 C.F.R. §1003.1(e)(4)(ii): adecisionwillbeaffirmedwithout opinionif: • IJ decisionwascorrect;errorwasharmless;issuessquarely controlledbycaselaw/statute;or • Factual/legalissuesnot“substantial”(nodefinitionin8C.F.R.) • Lessof anissuethaninpast. • Strategiestoavoidsummary affirmance: • Arguethat issuesnotsquarelycontrolledbyexistingprecedent • Argueerrorsmadenotharmless • Arguethat issuesaresubstantialandnovel • Orarguethat remandisnecessarytorequirefurtherfact-finding undertheproperlegalstandard

  9. MOTIONS IN YOUR BIA BRIEF -1 PRACTICE POINTER • OPPOSITION TO SUMMARY AFFIRMANCE MOTION THAT DHS WILL INEVITABLY MAKE • MOTION FOR ORAL ARGUMENT • MOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATION • MOTION TO REMAND IF CLIENT GETS TRAVEL DOCUMENTS AND VOLUNTARY DEPARTURE WAS DENIED DUE TO LACK OF TRAVEL DOCS.

  10. MOTIONS IN YOUR BIA BRIEF – 2PRACTICE POINTER • MOTION FOR ADMINISTRATIVE CLOSURE (IS CLIENT ELIGIBLE FOR 601A PROVISIONAL WAIVER? CLIENT DACA ELIGIBLE OR DACA GRANTEE?) • MOTION TO REMAND IF I-130 IS FILED (HASHMI) OR I-130 IS APPROVED WHILE APPEAL IS PENDING • MOTION TO REMAND IF PRIORITY DATE BECOMES CURRENT. • MOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATION • MOTION FOR 3-MEMBER PANEL (NEXT SLIDE)

  11. Getting Three-MemberPanelReview • •SingleJudge Review permitted unless appealqualifiesfor3-memberreview under8 C.F.R. §1003.1(e)(6) • MOVE FOR PANEL REVIEW AT BEGINNING OF BRIEF IdentifyALL applicable reasonsfor3memberreview: • To settle inconsistencies among the rulings of different immigrationjudges; • To establisha precedent construing the meaning of laws, regulations, or procedures; • To review decision by an immigrationjudgeortheServicethat isnotinconformitywiththelaworwithapplicableprecedents; • To resolvea case or controversy of major national import; • Toreviewaclearlyerroneous factual determination by an immigrationjudge;or • To reverse the decision of an immigration judge or the Service, other thana reversal under Section 1003.1(e)(5). • •Remembertoargueagainst3MemberReviewifyouwoninImmigrationCourt

  12. GETTING READY TO WRITE-1 PRACTICE POINTER • OUTLINE IJ DECISION AND CITE TO IJ DECISION PAGE NUMBERS: • FACTS RECAP • EACH REASON FOR FINDING ADVERSE CREDIBILITY AND ITS BASIS IN RECORD THAT IJ INDICATED SHE/HE RELIED ON • EACH FINDING OF LAW/FACT AND IJ’S BASIS • OUTLINE KEY PARTS OF TRANSCRIPT – TR. AT ?PAGE • CROSS-REFERENCE TRANSCRIPT REFERENCES WITH THINGS THAT IJ RELIED ON • DID IJ FAIRLY RE-CAP TESTIMONY • DID IJ LEAVE OUT HELPFUL CORROBORATING TESTIMONY

  13. GETTING READY TO WRITE-2 PRACTICE POINTER • LOOK IN THE RECORD OF EXHIBITS FOR EXCERPTS THAT SUPPORT YOUR POINTS OR REBUT IJ’S FINDINGS OF LAW AND FACTS • MAKE A LIST OF THE EXCERPTS AND CITATIONS TO RECORD • OUTLINE YOUR POINTS • AFTER YOU WRITE UP POINTS, MAKE A SUMMARY OF ARGUMENT AND PUT IT AT FRONT OF BRIEF • FOR BIA, YOU CAN USE LISTS IN ADDITION TO STRAIGHT PROSE.

  14. GETTING READY TO WRITE-2 PRACTICE POINTER • DON’T THROW AWAY ANY ISSUES - SOMETIMES THE BIA “HANGS THEIR HAT” ON AN ISSUE THAT YOU MAY HAVE CONSIDERED MINOR. • STAY ABREAST OF NEW LAW IN AND OUT OF YOUR CIRCUIT [BENDERS IMMIGRATION DAILY IS FREE!]. ASK FOR REMAND BASED ON NEW LAW IF APPLICABLE. IF OUTSIDE CIRCUIT NEW LAW IS FAVORABLE, WRITE MOTION TO REMAND AND EXPLAIN WHY THE REASONING OF THAT OPINION IS SOUND.

  15. Tipsfor BriefWriting • Understand BIA Structure and Operations • Staff Attorneys do first level review and a draft decision • Case loads are heavy – Make it easy to understand your issues/arguments • Highlight important quotations • Cite to/Quote from key documents • Append any “Silver Bullet” Transcript pages or Exhibits • Use the Practice Manual • Parts of Brief in order – 4.6(c)(iv) • Formatting Guidance and Length

  16. Practioner’sTipsfor Brief Writing • Avoid Common Pitfalls • Choose issues wisely; relegate minor points to footnotes • Beware of boilerplate and model briefs • Individualizeyourbrief • Allocated space should correspond to significance of issue • Be Clear About Remedy • Affirmance • Outright Reversal • Remand • Does Record Support Your Request?

  17. BIA decisions • When are they issued? • Generally a few months after briefing completed, but can be up to a year or more. • BIA tries to expedite detained cases. • Served on client and attorneyby regular mail. • How to you keep track of your Board case/get updates? • • EOIR hotline: (800) 898-7180 • Recorded procedural information and clerk’s office: (703)605-1007

  18. What comesnext? • If you win, can DHS appeal? No • Ifyou lose, can you appeal? Yes • ToCircuitCourt,within30days of BIAdecision • Filea PetitionforReview. • Procedurevariesdependingon rules ofCircuitCourt. • Note:CircuitCourtdoes notalwayshave jurisdiction • Somelimitationsondiscretionaryopinionsby BIA • Nojurisdictionoveraliensremovableforcommitting certaincriminaloffenses (INA§242(a)(2)(C)),butCircuit hasjurisdiction todetermine itsownjurisdiction.

  19. AdditionalResources - 1 BIADirectory http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm Bender’s Immigration Bulletin (free subscription) http://www.bibdaily.com AILA http://www.aila.org EOIR VIRTUAL LAW LIBRARY http://www.justice.gov/eoir/vll/libindex.html

  20. Additional Resources - 2 EOIR VIRTUAL LAW LIBRARY http://www.justice.gov/eoir/vll/libindex.html • BIA precedent decisions • Country conditions research-more than country reports! • Federal Register • Immigration Law Advisor – DOJ newsletter- has many interesting articles and roundup of BIA and Federal Decisions; about 10 issues/year

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